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Resort benefits from statute of repose

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“I was keenly disappointed in the decision at first, but after reviewing the wording, I am less worried about the status of our safe place law.”

William C. Gleisner III,
Law Offices of William C Gleisner III

In 2001, Julie Mair fractured her right fe-mur in a women’s restroom at the Trollhau-gen Ski Resort after she lost her footing on a slightly depressed drain and fell onto the concrete floor. She filed suit against the resort, but the trial court and two appellate reviews, including the Wisconsin Supreme Court, ruled in favor of Trollhaugen.

The Supreme Court decision, which was filed on June 6, 2006, upheld the trial court and court of appeals rulings that the drain was a structural defect and not an unsafe condition associated with the structure, thus barring coverage by Wisconsin’s safe place statute sec. 101.11. Wis. Stat. sec. 893.89 superceded Mair’s claim and Trollhaugen was protected under the 10-year statute of repose because the drain’s condition had not been structurally altered since its construction in 1976.

“I was keenly disappointed in the decision at first, but after reviewing the wording, I am less worried about the status of our safe place law,” said attorney William C. Gleisner III, who spoke on the decision at the Wisconsin Academy of Trial Law-yers (WATL) Tort and Technique Update Seminar on Oct. 13.

Gleisner, in conjunction with WATL had filed an amicus curiae brief with the Supreme Court which outlined concern that “safe place law will be seriously subverted if safety violations are allowed to go unaddressed because of a statute of re-pose.”

The belief was that the state’s 100-year-old safe place law provides protection for members of the public in public buildings whether a “structural defect” or a “defect associated with a structure” if the defect endangers public safety, regardless of how or when it was created.

Mair’s case was constructed on that belief, but ultimately lacked enough evidence to support a negligence claim.

“Their strategy seemed to focus more on the legal argument rather than the facts,” said attorney Todd Joseph Koback, who defended Trollhaugen.

“I think the expert for the plaintiff painted the case into a small and narrow corner,” Koback said during an interview.

No allegations were made that Trollhau-gen did not maintain the bathroom facilities and according to Koback, detailed records and documents from the resort allowed him to defend closely to sec. 893.89.

“I essentially took words right from the statute and although the result may have been harsh, I thought I was right,” said Koback, who also noted that he has lost other cases using the same defense.

Gleisner concurred that the approach taken by Mair was limited and noted that the Supreme Court supported the evidence at hand.

In his presentation, he referenced the Supreme Court’s explanation that “[Mair] did not allege in the complaint that Trollhaugen negligently operated or inspected the bathroom floor. Under Wis. Stat. Sec. 893.89(4)(c), such claims are sufficient to escape the scope of the statute of repose.”

Koback suggested that some “creative thinking,” could have helped the plaintiff get around the facts and even he believed that future attorneys will be able to avoid the legal fate that befell Mair.

He noted that only briefly was there discussion concerning warnings posted outside the bathroom which, had the plaintiff’s team pursued the strategy, could have given them protection under the safe place statute provision in 893.89(4)(c).

“I was glad they didn’t emphasize the fact that there were no warnings or signage outside the bathroom concerning the condition of the drain,” said Koback. “That was a big saving grace for us.”

W. Thomas Terwilliger, who led the court of appeals defense, believed the rulings would make use of sec. 893.89 more prevalent in defenses, however, successful.

“I think the decisions put some teeth into the statute of limitations,” Terwill-iger said during an interview. “Certainly, [sec.] 101.11 is still alive and well, but it just didn’t necessarily apply here.”

While Koback was happy with the victory, he did not believe the decision
would have a major impact on future trials and that ultimately, the defense will have a tougher time in similar cases.

“Because of the limited facts presented and narrow scope in this case, the statute held up,” said Koback. “Any savvy trial attorney with a solid knowledge of case law should be able to exploit the result by expanding their discovery.”

Gleisner hoped that the outcome’s effect would not be long-lasting either and the decision should “serve as nothing more than a wake-up call for attorneys to be more proactive in their methods of discovery.”

“Because of Mair, practitioners should forget about pursuing structural defects if a building is clearly more than 10 years old,” said Gleisner. “If justified by the facts of a case involving a building constructed more than 10 years before an action is commenced, attorneys should carefully craft their pleadings and discovery in an effort to build a case for negligent operation or inspection of the property that harmed the client.

Of course, the course of action would need to be justified by the facts.”

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